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Legal and Constitutional Affairs Legislation Committee
09/02/2016
Estimates
ATTORNEY-GENERAL'S PORTFOLIO
Office of the Australian Information Commissioner

Office of the Australian Information Commissioner

CHAIR: We are now dealing with the Office of the Australian Information Commissioner. I welcome Mr Pilgrim, the Acting Australian Information Commissioner, along with your assistant commissioners. Thank you for joining us. If you would like to make an opening statement, please do so now.

Mr Pilgrim : I would like to make a brief statement outlining the current work of the Office of the Australian Information Commissioner and touch on some of our priority areas. As the committee is aware, the functions of the OAIC fall primarily from our regulatory role under both the Privacy Act and the Freedom of Information Act. I am pleased to be able to report that while our workload and responsibilities under those statutes grow, the office is continuing to manage its responsibilities effectively within the resources available to us.

I will start with some statistics. In the previous financial year, 2014-15, the office received some 18,066 inquiries covering both privacy and FOI matters. In the first six months of the current financial year, to 31 December 2015, we have received approximately 10,266. In terms of our privacy functions, in 2014-15 we received 2,840 complaints. In the first six months of this financial year we have received 1,076 and we have finalised 1,107 in an average time of five months. We have also received 55 voluntary data breach notifications in the current year to 31 December, having received 117 in the previous financial year. I have opened seven commissioner-initiated investigations, having opened four in the previous financial year. We have undertaken nine assessments, formerly known as audits, of both public and private sector entities up to 31 December 2015. In the previous financial year we undertook 12 in total. We have lodged 19 submissions to various parliamentary committees and government consultation processes dealing with the use of personal information. In the previous financial year we made 36 such submissions.

In 2016 some of our priority areas in privacy will focus on continuing our oversight role in the eHealth sector, particularly with the trials of the opt-in system with the My Health Record. We will work on the extension of our oversight role emanating from the data retention and foreign fighters acts. We will be providing regulatory oversight of the privacy implications arising from the enhanced welfare payment integrity initiative. We will be working with the Attorney-General's Department on the security agenda, including specific issues such as national facial biometric matching capabilities. We will also be working with the Attorney-General's Department on the proposed mandatory data breach notification scheme.

Further, under what I would describe as the broad title of data usage, we are engaging closely with the Department of the Prime Minister and Cabinet on the public sector data management initiative. We will be working on guidance for both the public and private sectors on big data and privacy, as well as data matching and de-identification. We also continue to work with our international counterparts in terms of the globalisation of personal data flows and the need for cross-border cooperation in the regulation of these movements of personal information. We will be taking opportunities to engage with the community on privacy more generally through our education and promotion work, such as during Privacy Awareness Week in May, where this year the newly appointed United Nations Special Rapporteur on privacy, Professor Joseph Cannataci, will be in Australia to speak at our functions.

Turning briefly now to our FOI function, in the 2014-15 financial year we received 373 applications for information commissioner reviews of agency decisions. In the current financial year to 31 December we have received 249 and finalised 236. I am also pleased to advise the committee that our average time taken to close an information commissioner review has reduced from approximately 10 months in 2013, just prior to the announcement of the disbanding of the OAIC, to three months by the end of 2015.

By way of some further breakdown, of the 236 IC review applications are finalised, 31 per cent were conciliated or withdrawn, 24 per cent were finalised as being misconceived, frivolous or vexatious, 18 per cent went to the Commissioner, myself, for decision, 10 per cent were referred to the AAT, 10 per cent were out of jurisdiction, three per cent were substituted with a different decision by the agency, and two per cent are subject to an IC review having reached an agreement between both parties.

I hope this provides with the committee with a useful overview, albeit a brief summary, of the activities of our office. Of course, as I have said to the committee before, we are able to achieve this through a very committed and enthusiastic team of people. Thank you.

CHAIR: Thanks very much, Commissioner.

Senator RHIANNON: Attorney-General, at the Senate Legal and Constitutional Affairs Legislation Committee on 20 October last year, you referred to the current arrangements for the operations of the OAIC as 'transitional'. Pending parliament's decision to abolish that statutory agency, the OAIC, does the government continue to regard as transitional arrangements which have been in place since the May 2014 budget?

Senator Brandis: Yes. The government did announce in that budget that as an economy measure the office would be abolished and its functions consolidated. However, as I am sure you are aware, the opposition parties and your own party have made it very clear that legislation to achieve that economy would not be passed through the Senate. So the government has not presented legislation to give effect to that measure to the Senate. In last year's budget we funded at the OAIC for another 12 months to the sum of $1.7 million. The government's position has not changed. I apprehend that the positions of the opposition and of your party have not changed either. Therefore, the OAIC remains in being, but the government's intention to achieve the economies of which I have spoken remains.

Senator RHIANNON: On the same day that you spoke about transitional arrangements, you also used the word 'imminent', when you said that the statutory repeal of the OAIC is 'imminent'. What is your definition of 'transitional' and 'imminent', considering that it is now 2016?

Senator Brandis: I think this is variable. It depends on the political circumstances. It is not going to happen unless a bill passes the Senate. The government is not going to present a bill—

Senator RHIANNON: That was not the question. The question is just about the definition of those words.

Senator Brandis: I will answer your questions in my own words. I said that the meaning is variable depending on the circumstances and I am going on to describe the circumstances. The circumstances are that the government has an intention, which it has declared, for reasons which it has explained, but that intention cannot be given effect to. So the arrangements continue as they are for the time being.

Senator RHIANNON: Mr Pilgrim, you spoke on 1 September last year. It was a presentation to the Law Society of New South Wales Government Solicitors' conference. In that you spoke about the situation we are discussing with regard to the future of the OAIC. You stated, 'We began to implement some of the changes.' Prior to that, you probably remember that you were speaking about what had happened about the bill passing the House of Representatives but not yet being considered by the Senate. Then you come to the end of that paragraph where it states, 'We began to implement some of the changes.' Considering that this is not law yet—it has not been passed—why did you start to implement the changes?

Mr Pilgrim : The decision taken by myself and the former commissioners who were still in the office at the time was on the basis that the announcement had been made about the proposal to disband the OAIC. In the budget of that year there were steps taken to reduce the budget available to the OAIC to allow it to continue to function with all of those resources. As we have touched on at previous hearings, some of those functions were to go to the AAT and some funding was to go with those to the AAT. Similarly, there were some functions that were transferred back to the Attorney-General's Department and the funding for those functions went as well. To put it simply, there was a decision taken that we could not perform all those functions with the resources available to us. There was an intention that these would be the new arrangements, so we worked to facilitate those changes, making sure that there were certain functions that only the Information Commissioner could continue to do in terms of IC reviews. We continued to undertake that function. However, functions in terms of policy issues around guidance, the guidelines and reporting for example, went to the Attorney-General's Department with the funding, so we facilitated the move of those particular functions.

Similarly, on the basis that there was an intention for the OAIC to be disbanded, and the fact that our resourcing had been changed, we also had to look to the future of our staff. We had a number of staff in the Canberra office here who we wanted to make sure we were able to help to relocate to other agencies and other positions, and I am pleased to say we were able to do that quite successfully in almost all cases. So we wanted to make sure that we were able to look after those staff and make sure they had the opportunity to gain other employment, on the basis that the intention was that the office would not be continuing. It is for those reasons, around functionality and also wanting to look after our people, that we made the decision to start implementing some of those changes.

Senator RHIANNON: The act requires the OAIC to independently review refusals of freedom of information applications and complaints about the handling of those applications. We often read that emphasis is given to the need for the independence. Under the current system, with the new role of the Attorney-General's Department, is that independence still in place?

Mr Pilgrim : It certainly is, Senator. For example, it is only the position of the Australian Information Commissioner that can make Information Commissioner decisions under the act. As I was outlining through some of the statistics, that is primarily the work we have been undertaking over the last 12 to 18 months since the announcement. In terms of complaints, the act allows for the Office of the Australian Information Commissioner or the Ombudsman to undertake the handling of the more administrative complaints under the FOI Act. As part of the arrangements that were being put in place, the proposed arrangements, the complaints process was handed over to the Ombudsman's office, who has been handling those since late 2014. I would add that I do not have the exact numbers of the complaints that the Ombudsman has handled at the moment, but at the time when we were handling them they were not a very large proportion of our work.

Senator RHIANNON: What arrangements are in place for the continued exercise of the Information Commissioner's functions and what additional resources have been provided to the OAIC for the continuing exercise of its FOI functions in 2015-16?

Mr Pilgrim : I think, as Senator Brandis has mentioned, the OAIC received additional funding of $1.7 million to allow us to undertake a streamlined process in terms of our FOI functions, those being primarily the ones around handling Information Commissioner reviews. As I said, it is a particular statutory power that only the commissioner can exercise, and that has been our primary function in terms of our responsibilities under the FOI Act for the last 12 months. In terms of the broader Information Commissioner powers coming from the Australian Information Commissioner Act, we have not been exercising those powers, and that was a decision the former commissioner and I took in terms of looking at the resources that were available to us and also in terms of the proposal to disband the OAIC.

Senator RHIANNON: So is any Commonwealth entity other than the OAIC currently providing reviews of FOI applications or complaints about the handling of those applications that are independent reviews?

Mr Pilgrim : If I have understood your question correctly, my primary function is to handle Information Commissioner reviews. If I can just go back to the statistics I mentioned in my overview, I will remind you of the numbers we have had. In the year to date—that is, up until 31 December 2015—we have received some 249 applications for Information Commissioner reviews, and we have finalised some 236. We are doing that on a streamlined model, in part to reflect the proposal for disbanding the OAIC. So, in some particular cases, we will close a matter because we believe it can best be dealt with by going through the AAT, for example. As I was mentioning earlier in terms of the proposal and the break-up of funding, the AAT, as part of the decision around the disbanding of the OAIC, received additional funding to allow it to undertake additional amounts of hearings in terms of the FOI Act.

Senator RHIANNON: With this new system, is the new way of doing it a greater cost to an applicant than would be charged were the function in question to be under the OAIC?

Mr Pilgrim : As I said, out of the 249 applications we received for Information Commissioner review, we finalised some 236. Of those, there is no application fee to lodge a request or an application for an IC review with our office. Of those 236 that we finalised, 10 per cent were closed by our office, as we formed a decision that they would be best dealt with by going to the AAT—and, yes, there is a lodgement fee with the AAT.

Senator RHIANNON: Can you expand on the lodgement fee?

Mr Pilgrim : I might need to have this corrected, but I believe it is $861 at the moment.

Senator RHIANNON: That is why I wanted you to expand on it—that is a lot of money. Wouldn't that be prohibitive for many people?

Mr Pilgrim : That would be a matter of circumstance for individuals. It depends on the applicant. A number of the applicants we get are coming from organisations, such as journalists, who are applying for access to documents and they have had a decision refused. Certainly there will be situations where it may be an individual. When we do look at exercising the power under the act to close a matter because we believe in the best interests of the administration of the act it could go to the AAT, we certainly do take submissions from the parties to ascertain their willingness for it to go to the AAT and take matters such as their ability to pay into account.

Senator RHIANNON: Aren't by far the majority of your applicants individuals—they are not journalists, they are not organisations but individuals trying to sort out their circumstances with some government department?

Mr Pilgrim : Certainly the majority of applications that come in under the FOI Act—I am happy to be corrected by my colleagues—do come in from individuals, and a lot of those are individuals seeking access to their personal information under the FOI Act. They are not necessarily, though, the ones we think need to be closed so that the matter can go to the AAT. I do not have those figures to hand.

Senator RHIANNON: In terms of when those people are thinking about where their application is going, when they see that they could face a bill of more than $800, they may not know about various possibilities. Surely that could be a deterrent—for ordinary people this is a lot of money.

Mr Pilgrim : It is a lot of money. As I was saying, before we make the final decision about whether we are going to close the matter under the particular provision we seek submissions from the individuals and we would take those sorts of issues into account when we receive those submissions.

Senator RHIANNON: Have you done any assessment of whether this could be a deterrent? Have you made any assessment of the impact the changes are having at various stages on people's willingness to proceed?

Mr Pilgrim : I do not think we have done any particular study into that but one thing I would suggest is that the number of Information Commissioner reviews that the office is receiving is starting to trend up at the moment, so we are getting more applications coming in under the current circumstances.

Senator JACINTA COLLINS: Thank you for the update in your opening statement—it has probably eliminated many of the questions I would have asked, given previous discussions which I do not propose to revisit. Accepting, as in part Senator Brandis said, the position we are in in relation to the government's endeavours to use the Office of the Information Commissioner for savings purposes and the will of others not to cooperate, can I ask you a bit more about your streamlined process and the figures you have provided us with today. You mentioned the 236 finalised matters. How many finalised matters were there in the previous period?

Mr Pilgrim : In the 2014-15 financial year we received 373 matters and we finalised 482.

Senator JACINTA COLLINS: So the finalised figure in part reflects what has gone on in previous periods per head, although less so now that your response time is down from 10 months to three?

Mr Pilgrim : That is correct.

Senator JACINTA COLLINS: Some of the decline in the response time was, if I recall, anticipated given the establishment of the office and the process to get processes working. Was that the case?

Mr Pilgrim : I believe that may have been some evidence given at previous hearings.

Senator JACINTA COLLINS: So it was anticipated quite aside from anything that might pertain to your streamlined process?

Mr Pilgrim : We have undertaken over the last 12 months internal reviews to further streamline how we process within the organisation the work, including focusing more on up-front conciliation so that we can try to bring the parties together to work out what is, for want of a better description, the sticking point on an issue rather than try and go through some of the more adversarial processes.

Senator JACINTA COLLINS: I think you mentioned a 10 per cent referral to the AAT. How does that compare to previous hearings?

Mr Pilgrim : That 10 per cent represented 25 matters that were referred to the AAT out of the 236 that we finalised. In the 2014-15 financial year, where we finalised 482, we closed 61 matters so that they could go to the AAT. I just cannot quickly work out what the percentage might be.

Senator JACINTA COLLINS: Sorry; how many was it out of the total?

Mr Pilgrim : It was 61 out of 482.

Senator JACINTA COLLINS: Okay; slightly higher. Do you have a sense of what FOI matters may not be coming to you because of the streamlining, as opposed to those that you are simply referring?

Mr Pilgrim : No, I would not have an idea of what is not coming to us. If an individual or an applicant wants to challenge the decision of an agency under the FOI Act they would need to apply to our office for an Information Commissioner review. As I mentioned, on the figures we have, the matters are slightly going up at the moment. So I do not see that there is any way that I can gauge what people may not be bringing to us.

Senator JACINTA COLLINS: Are you dealing with any FOI complaints, or are they now dealt with by the Ombudsman exclusively.

Mr Pilgrim : They are being dealt with by the Ombudsman exclusively—since about the end of 2014.

Senator JACINTA COLLINS: Have you stopped any of your FOI policy development work, or is that all now being undertaken by the Attorney-General's Department?

Mr Pilgrim : We have not undertaken any specific policy development work or done any work on the guidelines. They were functions that were to be transferred, and have been transferred, to the Attorney-General's Department.

Senator JACINTA COLLINS: I may ask them some questions about that later. Where are you on staffing?

Mr Pilgrim : As at the end of January we had 65.23 full-time equivalent staff.

Senator JACINTA COLLINS: How does that compare?

Mr Pilgrim : To which periods?

Senator JACINTA COLLINS: Previous periods. Let's say the two previous periods.

Mr Pilgrim : On 31 January 2015 we had 60.9 full-time equivalent staff and on 13 May 2014 we had 83 full-time equivalent staff.

Senator JACINTA COLLINS: When does the funding period of the $1.7 million run out?

Mr Pilgrim : That would run out on 30 June this year, the end of the financial year.

Senator JACINTA COLLINS: Despite the statement made in the media release of the Department of the Prime Minister and Cabinet on 17 November last year announcing that it would join the Open Government Partnership that the 'government is committed to openness as a basic principle of modern government,' the government, as the Attorney-General just indicated, has not changed its position about an ongoing role for this agency. Is that your understanding?

Mr Pilgrim : My understanding is that the bill is still before the Senate or on the list and that is the status at the moment.

Senator JACINTA COLLINS: So if the next budget does not include further funding then you will be without funds?

Mr Pilgrim : That would be true. If there is no funding for the FOI function then we would not be able to undertake it.

Senator JACINTA COLLINS: That concludes my questions. Thank you, Chair.

Senator RHIANNON: Commissioner, I was interested in the case with the Department of Immigration and Border Control. This was the issue where they said that they would need to consult with 600 employees before releasing documents. Could you provide some brief about that decision and if this is a trend that is coming with departments to argue that they need to consult with large numbers of employees before information can be released?

Mr Pilgrim : Without going through the decision, which was published entirely, I think it is an issue that I would prefer to take on notice because I would like to remind myself of some of the other trends we may be seeing in that area. We do believe that we encourage all agencies to publish all charts as part of their publication scheme to try to reduce the number of issues or inquiries people may have about staffing levels and particular positions within agencies. As to the broader question you are asking, I would like to take that on notice.

Senator RHIANNON: I noticed in some of the findings that it was suggested or reported that some of the departments were overestimating the amount of time it would take for the information to be found and to be released. Is that also a trend?

Mr Pilgrim : Again, I want to be careful of my words and not say it is a particular trend. It is an issue we are seeing, and one of the things we hope to do through the decisions we make is to use them also as an educative process so that they can understand the views of our office in terms of some of the time frames we think should be taken in terms of being able to identify and locate documents.

Senator RHIANNON: Are you just accepting that the departments will make a fair judgement on the time that will be required? Is it just a matter of trust or are there guidelines with regard to this matter? Because it seems as though that becomes quite influential in deciding where some of these cases go.

Mr Pilgrim : We certainly do monitor the IC reviews that are coming through to us to understand what some of the challenges may be for agencies. We try to use some of the decisions we make as the educative tool. Ms Toohey might want to make some observations in terms of sampling.

Ms Toohey : One of the things that we certainly encourage agencies to do is this idea of sampling so they can justify a decision if they are have made a decision—

Senator RHIANNON: You used the word 'sampling'; could you define that.

Ms Toohey : If a matter comes to us and it has been a practical refusal, we generally ask the agency to produce a small sample of the documents so that we can then test their calculation versus our own. The commissioner has made a number of decisions looking at those sorts of processes and has certainly provided guidance in those decisions to the agencies about that approach.

Senator RHIANNON: Is there a trend that there is often considerable disparity between your estimations and other departments' estimations?

Mr Pilgrim : I think what I was saying is that I do not want to try to use the word 'trend' because it can be taken in a way to say that there is a major issue. It is certainly something we are looking at and it is something that I think we can provide more guidance to agencies on, and, as I said, our primary way of doing that is using the IC review process as part of that educative process to let agencies have an understanding about what we think in certain circumstances. Looking at each case individually would be a reasonable period of time.

Senator RHIANNON: So you said you are looking at it in time. Will you be able to share with us what these trends are?

Mr Pilgrim : I can certainly take that back and see whether it is something we can produce any useful information on. I cannot guarantee what we may be able to produce, but I certainly will take it on board.

CHAIR: Thank you very much, Commissioner, and your staff. We appreciate you being here.